What s a clerk to do?

Transcription

1 Legal Advice vs. Legal Information Ann M. Anderson Training for New Clerks of Superior Court January 15, 2015 You re talking to long-time friend on a Sunday afternoon. His father s mental health is declining, and he doesn t know what to do to help him. He wonders if you can give him some advice about his options. You run into your neighbor at the post office. She tells you she has petitioned for her mother to be found incompetent. (One of your assistants hears guardianships.) She starts to tell you about her mother and asks your advice on how to testify at the hearing. What should you do? 1

2 The Law G.S. 84-4: [I]t shall be unlawful for any person except active members of the Bar admitted and licensed to practice as attorneys-at-law, to [practice law]. G.S. 84-2: The Law No clerk, deputy or assistant clerk shall engage in the private practice of law. The Law Practice law G.S Any legal service, with or without compensation: Preparing (or helping prepare) deeds, mortgages, wills, trust instruments, inventories, accounts or reports of guardians, trustees, or administrators or executors Preparing (or helping prepare) petitions or orders in any probate or court proceeding; Abstracting or passing upon titles; Preparing and filing of petitions for use in any court; or Assisting by advice, counsel, or otherwise in any legal work; Advising or giving opinions on the legal rights of any person, firm, or corporation 2

3 The Bottom Line Clerks shall not give legal advice. Clerks want to help! Clerks are supposed to help. Isn t it a clerk s job to help? The key distinction Legal advice? Legal information? 3

4 The key distinction Legal information: Educating/informing Facts: What, Where, How Legal advice: Counseling Opinions: Should, Whether Sources of guidance NC Supreme Ct: 2004 Order Clerks Manual: Chapter 11 Graecen article AOC education materials: What Can I Say? JUNO LearningCenter Sources of guidance 4

5 Graecen s 5 Principles Court staff: 1. Have obligation to explain court processes and procedures to litigants, media, and other citizens. 2. Have obligation to inform litigants and potential litigants how to bring their problems before the court. Graecen s 5 Principles Court staff: 3. Cannot advise litigants whether to bring their problems before the court, or what remedies to seek. 4. Must remember the absolute duty of impartiality, and must never give advice to one person to create an advantage over another. 5. Must remember that neither parties nor their attorneys may communicate with judge ex parte. Supreme Court Order Court staff MAY Provide public information in Dockets, calendars, case files, indexes Provide/recite rules, procedures, fees & costs Help a person find statutes and rules Identify and provide applicable forms and written instructions Answer questions about how to complete forms Define common court process terms Provide #s for referral services, local attorney rosters, AOC Web site, other Web sites Aid individuals with disabilities according to the ADA. 5

6 Supreme Court Order Court staff MAY NOT Advise whether statute/rule is applicable Recommend particular course of action or response [that s legal advice!] Advise a person how to phrase responses to forms/pleadings, etc. Apply law to facts of a case Fill in forms Recommend: Whom to sue Types of claims, arguments Types of defenses/objections Types of damages to seek Evidence, witnesses, objections, arguments to make at hearing or trial (or when to make them) Supreme Court Order Court staff MAY NOT (cont d) Recommend when or whether to: Seek or oppose continuance Settle a dispute Appeal Interpret the meaning or implications of statutes or appellate court decisions (as applied to a case) Perform legal research for an individual Predict the outcome of a case, strategy, or action Supreme Court Order Provide information. Avoid recommendations. 6

7 Clerks Manual Chapter 11: Ethics for Clerks Section IV, pp. 7-8 Appendix I (Suggested responses to common questions) Would you help me fill out this complaint (petition, etc.)? I just got this traffic ticket. What do I do now? Should I go to court on this? Do I have to get a lawyer? 7

8 My renter hasn t paid rent in two months. Can you show me the right form to get his sorry butt removed from my property? This form says that I can remove my tenant for criminal activity. I think he s been smoking pot on the back deck. Does that count? 8

9 My father died and left everything to my mother in his will. I m trying to help her. Should Can we do a summary administration? I ve been told to try collection by affidavit in my mother s estate. Am I qualified to do that? Can you show me the right form? 9

10 What does spousal allowance mean? If you don t know, don t wing it! Providing information means providing correct information. I ve been called as a witness in an incompetency hearing for next week. I don t want this lady to be found incompetent. What should I say at the hearing? 10

11 My cousin is guardian of my aunt s estate. I know she s mishandling the money. Can I get her removed? How do I get the money back for my aunt? You run into your neighbor at the post office. She tells you she has petitioned for her mother to be found incompetent. (You hear most of the guardianship proceedings in your county.) She starts to tell you about her mother and asks your advice on how to testify at the hearing. Issues? Graecen s 5 Principles Court staff: 3. Cannot advise litigants whether to bring their problems before the court, or what remedies to seek. 4. Must remember the absolute duty of impartiality, and must never give advice to one person to create an advantage over another. 5. Must remember that neither parties nor their attorneys may communicate with judge ex parte. 11

12 Ex Parte Communication A communication: Involving less than all parties Written or oral About a pending (or impending) case Made to the judge/hearing officer in the case Without all parties given notice or opportunity to be heard. You run into your neighbor at the post office. She tells you she has petitioned for her mother to be found incompetent. (You hear most of the guardianship proceedings in your county.) She starts to tell you about her mother and asks your advice on how to testify at the hearing. What should you do? After listening to your neighbor talk about her mother The next day you approach your assistant clerk who will hear the case, and you say Listen, there s something you really need to look out for in that hearing 12

13 An attorney asks: Are there any local rules here about seeking default judgments? An attorney asks: I need to calendar a motion to compel discovery. I d like it to be heard by Judge. Is there a way I can make sure I get on his calendar? A pro se plaintiff asks: The defendant in my case is not answering my request for documents. Can I make him respond? How do I ask a judge for help? 13

14 I have a judgment from the magistrate. How do I get the money? I m supposed to go to my foreclosure hearing tomorrow. I need more time to work out payments to the bank, but they won t talk to me. Can I get more time? What should I say to the clerk? I had a contractor work on my house in 2011, and he screwed up a bunch of stuff. I told him I was going to sue him, but he said I can t cause I waited too long. He said if I sue him now he d get the case dismissed and I d have to pay all his attorney s fees. Did I really wait too long to sue? Will I really have to pay his attorney s fees? 14

15 The Law Practice law G.S Any legal service, with or without compensation: Preparing (or helping prepare) deeds, mortgages, wills, trust instruments, inventories, accounts or reports of guardians, trustees, or administrators or executors Preparing (or helping prepare) petitions or orders in any probate or court proceeding; Abstracting or passing upon titles; Preparing and filing of petitions for use in any court; or Assisting by advice, counsel, or otherwise in any legal work; Advising or giving opinions on the legal rights of any person, firm, or corporation I had a contractor work on my house in 2009, and he screwed up a bunch of stuff. I told him I was going to sue him, but he said I can t cause I waited too long. He said if I sue him now he d get the case dismissed and I d have to pay all his attorney fees. Who s a good lawyer to help me? 15